When your divorce was finalized, all the details were worked out. From who had custody to how much alimony and child support were being paid and to whom, you, your former spouse, and your children knew what was happening. However, things have changed now, and you believe that changing custody would be a good idea. Before you simply move all your children’s clothing and toys to your house and tell the school they live with you now, it is essential to understand how child custody modification works, under what circumstances custody can be modified, and how you can improve the chances of successfully changing your existing North Carolina or South Carolina child custody order. At King Law Offices, our knowledgeable family law attorneys are familiar with child custody laws. We may be able to assist you with determining whether your reason to modify custody has a chance of being successful, preparing a motion to change your existing order, or referring you to mediation to resolve issues with your former spouse so that the court only needs to approve a new parenting plan that you both agree on. Call (888) 748-KING to schedule a consultation in our York County, South Carolina office or one of our Western North Carolina locations to learn more about your legal child custody options.
What Is Child Custody Modification?
Child custody refers to the legal rights and responsibilities that determine who makes decisions regarding a child’s living arrangements, care, and upbringing. Custody is automatically given to married parents upon the birth of their child, or legally bestowed upon one or more parents when an unmarried father signs the birth certificate, a child is adopted, or the parents divorce. Child custody modification is the process of legally changing a child custody order that is already in place.
Child custody may be modified when the parent files a petition, called a Motion to Modify, with the court. In this petition, the parent must argue that a substantial change in circumstances has occurred that significantly affects the child’s well-being and warrants a modification of custody. The court will then review the case and decide whether to modify the original order or deny the motion, leaving the existing order in place. If changes are ordered, they may include an altered custody schedule, a changed visitation schedule, and, depending on the changes, adjustments to child support obligations. Additionally, these changes may affect both legal custody and physical custody.
Key Aspects of Custody Modification You Should Know
While parents take child custody seriously, they do not always recognize the complexity surrounding custody. When they decide they would like more time with their child or are inconvenienced by a term in the custody order, they may believe they can simply change things without going to court or that they can get the court to modify the existing order. However, custody modification is not something the court takes lightly. There are some key aspects that parents should be aware of before trying to change their custody order.
There Must Be a Substantial Change in Circumstances
Both North Carolina and South Carolina require a change in circumstances to change a custody order. Per N.C.G.S. §50-13.7, North Carolina custody orders can be vacated or modified upon showing changed circumstances. In South Carolina, S.C. Code §63-15-240 does not specifically state changed circumstances, but it does provide several examples of situations that should be considered in the issuance or modification of a custody order, such as parental relocation, stability of each parent’s residence for the child, whether the child has been abused or neglected, and whether one parent has attempted to alienate the other from the child. The examples provided by the law are not exhaustive, and the courts decide each custody case based on the specific circumstances.
What this means for parents is that they cannot modify a custody order simply because they dislike the existing order or it is mildly inconvenient for them. Instead, they must be able to show a court that there is a substantial and ongoing change that warrants modification. For example, a child getting sick with a cold is not a significant and ongoing change, but if the child is allergic to a pet in one parent’s home and the parent is unwilling or unable to rehome the pet, that may be a substantial and ongoing change.
The Court Focuses on the Children’s Best Interests
Even when there is a substantial change in circumstances, the court is focused on the children’s best interests. If the court orders a custody modification, it will be in the best interests of the children. This may mean that a parent is negatively affected by the change, or that one parent is more affected than the other. Therefore, when a parent considers filing for a modification, they should not only consider whether the change is substantial but also whether it is in the best interests of the children.
Custody Modification Is a Legal Process
Custody and custody modification are both legal processes. Whether it is an original custody order as part of a divorce or a modification of an order sometime after the divorce, these are legally binding orders that both parents must follow, regardless of whether they fully agree with all the terms or not. Parents cannot simply change custody on a whim, as this can create instability and confusion for the children and potentially lead to the parent being held in contempt of court for failing to follow a court order.
If parents wish to change custody, they must follow the legal process to do so. In cases where a parent is genuinely concerned for their child’s safety and believes that changing custody immediately is necessary, such as suspected abuse, the parent should consult with a South Carolina or North Carolina family law attorney at King Law Offices to learn more about their legal options to protect their child.
Legal Representation May Ease This Complex Process
From filling out a petition to request a custody modification to appearing at a hearing and explaining the reasons, changing custody can be a complex and confusing process, especially for parents who have never experienced it before. Being represented by an attorney may help ease the process. An attorney may be able to assist with filling out the paperwork, offer advice on what to say and what not to say to the judge, explain what to expect from the process, and provide a legal opinion on whether the change in circumstances is substantial enough to be successful in seeking a custody change.
8 Reasons a Judge May Modify Custody Orders
Judges must make their decisions based on the law. In custody cases, that means making decisions that are in the best interests of the children, and when there is a substantial change in circumstances. However, many parents are uncertain what exactly constitutes a substantial change in circumstances. As parents, it often feels like everything is critical, and it can be frustrating if the court does not view things the same way. While the eight reasons we provide are not exhaustive, they do offer a perspective that can assist parents in determining whether their reason may be considered worthy of a custody modification.
Child’s Needs
If the child’s needs may be better met by the parent who does not currently have custody, a judge may consider custody modification. This may include situations such as when the child has a medical condition, mental health issues, or needs specialized care that one parent is better equipped to provide. This does not necessarily mean that the parent must personally meet that need all the time. For example, if the parent is better able to pay for nurses or home health aides, lives closer to a hospital or other facility that the child may need to go to frequently, or is otherwise prepared to provide a home that better meets the child’s new needs, they may be able to change custody.
Parental Relocation
People often move. These moves may be due to buying a home, finding a new job, or other reasons. If a parent relocates a significant distance (typically 100 or more miles, or a move out of state with the child) away from where the child currently lives, it may be grounds for modifying custody. If the other parent is remaining in the original location and the judge determines that it is in the child’s best interest to stay in that original location as well, the parent may be successful in changing custody. However, it is essential to remember that simply staying in the same school and keeping their existing friends and support network may not be enough. Parents should consider looking for additional evidence that changing custody is best for the child, such as showing that their current school provides a better education than the new one they would be attending or that the child’s mental health might suffer from moving to an unfamiliar place.
Parental Unfitness or Instability
Parents are not expected to be perfect, but certain activities and behaviors can result in a parent losing custody of their child. Child abuse or neglect, substance abuse, erratic behavior, or an inability to provide a stable environment for the child may all be substantial reasons a judge may modify custody. Parents should keep in mind that a stable environment does not necessarily mean their own home. For example, if one parent is living with a family member, such as their own parent or a sibling, this can be a stable environment. However, if that parent is staying at one relative’s house one week, a different relative’s the next, and a friend’s house the week after that, this may be an indication of environmental instability if it is ongoing.
Failure to Follow the Existing Custody Order
If one parent consistently fails to abide by the terms of the existing custody order, such as obstructing visitation or disregarding the parenting time schedule, a judge may order a modification of custody. If a parent plans to use this failure to follow the existing order to request a change in custody, they should keep track of each violation to show that this is a consistent pattern. This tracking should include noting details such as the dates and times the violations occurred, what the violation was (for example, that the parent failed to drop off the children for visitation or that they failed to return the children on time), and any other relevant details. If the parent has any texts or other communications that show the other parent’s willful disregard for the terms of the current custody agreement, they should keep those and use them as evidence as well.
Parental Alienation
If one parent is attempting to undermine the other parent’s relationship with the children, this may be grounds for custody modification. Proving parental alienation requires strong evidence. Parents will want to keep records of canceled parenting time and missed visits, any emails or text messages in which the other parent encourages the child to reject the parent or makes false accusations against the parent, and statements or testimony from the child’s school officials, therapists, or other witnesses who have observed behavioral changes in the child.
Additionally, legally obtained audio or visual recordings of the other parent demonstrating alienating behaviors can be powerful evidence for a custody modification. In North Carolina, N.C.G.S. §15A-287 allows recording as long as at least one party to the communication consents. S.C. Code §17-30-25 allows recording by a party to the communication or recording by a non-party if one of the parties has given consent to the non-party.
Death of a Parent
The death of a custodial parent clearly warrants a custody modification, but the death of either parent can change the dynamics of custody. The surviving parent may need additional support, or the child may need to be appointed a guardian. Alternatively, if a non-custodial parent has been diagnosed with a terminal illness, parents may wish to modify custody to allow the child as much time as possible with their ill parent.
Substantial Change in Circumstances
A substantial change in circumstances is the overall term used to determine whether a reason is sufficient for custody modification. However, it covers a number of possibilities, including changes in a parent’s employment, the remarriage of either parent, changes in the child’s school or extracurricular activities, and many other life events. Parents who believe that a substantial change in circumstances has occurred and want to seek a change in custody may wish to consult with a family law attorney to discuss the details of their circumstances and learn more about their options.
Child Preference
Child preference is not always a deciding factor in child custody determinations or modifications. However, in some cases, if the child is old enough and mature enough to express their preference and explain why they prefer one parent over the other, a judge may consider it and allow the child’s preference to influence the decision made. Neither North Carolina nor South Carolina has a specific age at which the child can express their preferences. North Carolina uses something called the “age of discretion,” which means the child is old enough to understand the implications of expressing such preferences. South Carolina may give some consideration to the preferences of a child between the ages of 12 and 14, while they give more weight to the preferences of a child who is at least 14. If the child is 16 or older, their preferences carry even more weight. However, it is also important to note that a child’s preference will generally only be considered when the court is deciding between two equally fit parents.
How to Improve the Odds of Successfully Modifying a Child Custody Order
Even in cases in which the parent can prove a substantial change in circumstances and firmly believes that it is in the best interests of the children to modify custody, there are things the parent can do to improve the odds of successfully getting a custody modification.
Have a Clear Understanding of the Problem and a Solution
In most cases, it is not enough to simply identify a change in circumstances and request that custody be changed. The parent should instead have a clear understanding of the problem and be able to identify how and why modifying custody is a solution. For example, a parent should not file a motion simply because the other parent is relocating. Instead, they should be able to explain to a judge why relocating is not in the best interests of the children (changing school in the middle of the school year, no family support in the new location, the current school or community offers something the new one does not, etc.), and why changing custody is in the best interest of the children (stay in the same school, extended family to help with childcare and other support, etc.).
Be Compliant With Existing Orders
If a parent is not complying with the existing court order, a judge may be hesitant to grant their request to change the order without a strong reason. Parents should ensure they are complying with the terms of the existing custody order and that they are not doing anything that may harm their chances of changing custody. If the parent is not complying with the order for some reason, they may want to consult with an attorney to discuss their reason and how to downplay the noncompliance or use it to their advantage.
Avoid Speaking Negatively About the Other Parent to the Children
When parents ask for a custody modification, it is usually because they disagree about what is best for the children under the new circumstances. This can make it tempting to speak poorly of the other parent. While the parent may have valid reasons to vent, they should ensure that they never speak negatively of the other parent to or around the children. If it is necessary to say bad things about the other parent, parents should do so with another adult whom they can trust not to share what was said with the children and ensure the children are not within hearing range when they speak.
Continue Effective Communication
The custody dispute may have parents feeling at odds with each other. This frustration may make a parent feel like they do not want to speak to their former spouse. However, effective communication may be more critical now than ever before. Parents should ensure that they continue to have effective communication. This means choosing words carefully to ensure they convey the precise message the parent intends, as well as timing the communication effectively. Parents should also document their communication. Particularly in instances where either parent is deviating from the existing custody order, effective and documented communication will be critical. Ensure that this communication clearly explains the reason for the deviation from the order and, if the other parent approves of or agrees to the deviation, proof of that approval or agreement.
Gather Evidence
Some changes do not require a lot of evidence. If a parent is relocating, a simple letter from their employer explaining the relocation or a statement from the parent explaining why they chose to relocate will often be enough. However, in cases where abuse, neglect, or parental unfitness or instability are alleged as the basis for the custody modification, parents will need to have evidence to back up their claims. Photos, videos, financial records, medical records, and other documents may serve as evidence, but parents may also want to consult with an attorney to discuss other forms of evidence they may wish to collect.
Be Prepared
If a parent decides to file a motion to modify custody, there is often a high likelihood that the other parent will file a counter-motion to maintain the current custody arrangement. Parents should be prepared for this possibility and for the allegations the other parent may make against them in their counter-motion.
Be Logical
Every parent loves their children and wants what is best for them. Because of that, custody can be an extremely emotional thing for many parents. However, the court will not make a decision based on emotion, but one based on law. Therefore, parents should try to set emotion aside and be as logical as possible. Even when things said or decisions made feel unfair, parents should remind themselves that the court is doing what it believes is in the best interests of the children and attempt to provide thoughtful, reasonable arguments rather than overly emotional ones or pleas.
How a Family Law Attorney Can Assist You
Child custody is, and always will be, complicated and fraught with intense emotions and strong beliefs about how things “should” be. While you may never be completely content with a custody order, there are some circumstances under which you can request a custody modification. At King Law Offices, our experienced North Carolina and South Carolina family law attorneys may be able to assist with preparing the appropriate paperwork, reviewing your reasons for modification, helping you collect evidence to back up certain allegations, referring you to a trusted mediation partner, and representing you in court, if it becomes necessary. Call (888) 748-KING to schedule a consultation in our Rock Hill, South Carolina office or one of our four North Carolina offices.